Should Historians Be Working for the Tobacco Industry?

by Robert N. Proctor

Mr. Proctor teaches in the Department of History, Pennsylvania State University, University Park. This article first appeared in the Lancet.

Historians of medicine last year were shocked to learn that
Kenneth Ludmerer, president of the American Association
for the History of Medicine, has been quietly working as an
expert witness for the tobacco industry since the late 1980s.
In a deposition[1] submitted for his work as an expert witness
in USA v Philip Morris Inc et al, the ongoing federal case
against the industry, Ludmerer admits to having worked on
at least thirteen separate trials over the past 15 years, always
for the defence, earning over half a million US dollars.

Ludmerer is not the only historian who has served in this
capacity.[2] From court records,[3] we know that at least 29
have witnessed for the industry, most often testifying that
everyone has always known that cigarettes were dangerous,
and that even after 1964 there was still “room for responsible
disagreement”[4] with the US Surgeon General’s
conclusion of that year that tobacco was a major cause of
death and injury. Common knowledge and open controversy
have long been the twin pillars of the industry’s
defence, from which it is concluded that people have only
themselves to blame for smoking-related harms and that the
industry acted properly in denying any proof of a genuine
hazard.

David Rothman,[5] Director of Columbia University’s
Center for the Study of Science and Medicine, has recently
argued that it is possible for historians to serve as expert
witnesses without compromising professional integrity.
Some historians have, however, presented inaccurate
accounts of tobacco and health history in their capacity as
witnesses for the tobacco industry. In his 2002 brief for the
ongoing federal case, for example, Ludmerer[6] stated that
there was “no credible scientific evidence linking cigarette
smoking to lung cancer or any life-threatening disease
before 1950”, ignoring both the pioneering epidemiological
studies in Germany before this time and the lip, throat, and
oral cancers discovered already in the 18th and 19th
centuries.[7] Similarly Peter English,[8] in his expert report for
Philip Morris et al in the same trial, stated that toxicologists
discovered benzpyrene in tobacco smoke only in 1954,
when the fact is that Roffo[9] had already made this
identification in the 1930s. There is actually quite a sizeable
literature on tobacco carcinogenesis before the 1950s.[7]

One reason slips of this sort might be expected from the
industry’s experts is that they are almost always asked to
testify in areas where they do not have a lot of peer-reviewed
expertise. Ludmerer, for example, best known as a
historian of medical education, has never published on the
history of tobacco, on lung cancer, on the impact of
tobacco on health, or on the industry’s claims about
smoking and health. The same is true of other historians
who have testified for the industry: Theodore A Wilson[10] is
a military historian who is best known for his work on the
Cold War; Elizabeth Cobbs-Hoffman[11] specialises in
American foreign relations; Jon Harkness[12] writes on the
history of clinical medical ethics, and Peter English[8] is a
pediatrician who has also testified for the lead industry. Ludmerer defends (or explains) his record of nonpublication
by stating that in the course of his 1000 hours
of research for the industry he “didn’t learn anything new”.[1]

Among the many historians who have worked for the
industry, John Burnham[13] of Ohio State University is one of
the few to have actually published on the history of tobacco.
Burnham was one of the original historians recruited by
Philip Morris for its Project Cosmic (1987–93), the goal of
which was to build “an extensive network of scientists and
historians from all over the world”[14] to serve as paid
consultants and/or project investigators for the company.
David Harley of Oxford University and David Musto of
Yale were among those recruited for this project, which
resulted in several publications,[15],[16] none of which acknowledged
the industry’s support. Musto alone by 1991
had received about $220 000 from Project Cosmic, with
another $250 000 approved for his use.[17]

Industry use of historical expertise generally does not,
however, involve deliberate falsification or fabrication, but
rather what appears to be a careful selection (and omission)
of facts. Were some scholars slow to accept the research of
the 1950s showing a major health hazard from cigarettes?
Of course—the industry’s favourites are the biostatistician
R A Fisher and Joseph Berkson of the Mayo Clinic, both of
whom are cited to buttress the idea that there was always
“room for responsible disagreement”[4] with the tobacco
hazards consensus. Did many people know cigarettes were
dangerous? Of course they did, as we often hear from the
long lists of such examples from the industry’s experts.[18]
These seemingly carefully selected facts build up an
impression of the industry as having acted responsibly in
rejecting proof of tobacco’s harms until the late 1990s.
Surely many people did know that cigarettes were
harmful—but was this true of 12–13-year-olds just beginning
to smoke? Did these children know that cigarettes
could cause emphysema or pulmonary tumours? How
many people even today know that cigarettes can cause
blindness[19] and bladder cancer?[20]

For many years the industry claimed that the evidence
linking tobacco and disease was weak or non-existent:
epidemiology was mere statistics; animal experiments said
nothing about humans; and pathological evidence was
merely anecdotal. The industry is now hiring historians to
assist in its defence, mainly by having its experts narrow
their focus of attention to only those topics that show the
industry in a favourable light. The industry’s lawyers have
become adept at this art of obfuscation, directing jurors’
attentions to trivial or confusing issues that raise various
forms of doubt—the key to victory in the US legal system
and a long-standing goal of the industry (recall Brown and
Williamson’s 1969 claim that “doubt is our product”[21]).
There is a saying in American public-relations circles that
for every PhD there is an equal and opposite PhD, but
when big money is at stake, there appear to be asymmetries
in what kind of expertise gets heard. The tobacco industry has usually been able to outspend its opponents, which can
be seen even in the number of historians thus far arrayed in
the tobacco trials. As of February, 2004, around 30 professional
historians have testified for the defence in such
cases, whereas only two have appeared on the stand for the
plaintiffs (myself[22] in Ironworkers v Philip Morris and Louis
Kyriakoudes[23] in Boerner v Brown & Williamson, though
Allan Brandt is now preparing to testify in the Federal
case).
There are lessons here about the nature of historical
truth—and bias—because historians may well believe they
are in no way misrepresenting history by working for the
industry. Ludmerer, for example, claims that the funding
he has received has not influenced his testimony. Asked in
deposition whether he believed that “the source of funding
can ever influence scientific independence”, Ludmerer
replied “I don't know” and that while there might be “an
occasional instance” in the historical past, it would nonetheless
be “an aberration”.[1] Ludmerer also admits, though,
that at least some of his expert reports were not even
drafted by himself but rather by the law firms representing
the industry. Asked about his 2002 expert report for the
defence in USA v Philip Morris, Ludmerer testified under
oath: “I did not draft the original report. It was drafted for
me to save me time . . . it reflects my views”.[1]

Historians who render expert advice to the tobacco
industry are playing a dangerous game. The industry may
not ask them to lie, but it may well ask them to confine their
research to only such topics as will be useful in the
industry’s defence. Historians are used to normalise the
industry’s conduct, to make what happened seem naturally
embedded in the context of its times. Historians are good at
this; we like to situate, to complicate, to show how messy
history can be.[1],[12] I am not suggesting that historians have
deliberately misrepresented history; their usefulness to the
industry lies more in what is not presented. They will never
be asked to explore those areas of history that could show
the industry in a disadvantageous light, and when asked on
the stand what they might have to say about such topics
(eg, the long record of claims of “no harms proven”), they
usually respond that they have not researched that topic.
They can honestly say they do not know. Peter English
testified in USA v Philip Morris[24] that he had not reviewed
tobacco industry documents apart from those shown to him
in cases on which he has worked.

Tobacco and several other polluting industries have fostered
a great deal of research by historians in recent years.
Millions of dollars have been given to trace the history of
lead, asbestos, and radiation, for instance—and some of
this is no doubt good history. A question then arises: should
historians wanting to publish some of these materials be
allowed to do so without disclosing the source of their
funding? Jon Harkness of the University of Minnesota has
earned around $300 000 testifying for the tobacco industry;
[11] David Sansing[25] of the University of Mississippi
has earned more than $500 000 in eight different tobacco
trials. If these scholars want to publish on this topic, should
they be required to disclose their funding sources?
I think it is remarkable that none of our leading journals
of medical history—or history more generally—require
disclosure of funding support for research or stakes in past
or ongoing litigation. The American Medical Association in
1996 adopted an even stronger policy, urging scientific
journals to reject for publication research funded by the
tobacco industry.[26] Is it time for historians to consider some
of these options?

I thank Josh Dunsby for alerting me to David Musto’s role in Project
Cosmic. I have worked on several occasions as an expert witness in plaintiff’s
lawsuits, including USA v Philip Morris Inc et al.

More Comments:

Oscar Chamberlain -
3/24/2005

John,

This strikes me as good, and balanced, advice. We really do need expert witnesses who are people of integrity.

On the more general topic of taking money from controversial industries, I think that the ethics depend on the circumstances. However, a scholar who, say, takes money from the tobacco industry to write a history of that industry should expect an extra level of scrutiny and, therefore, should take particular care in documenting his or her work.

John H. Lederer -
3/22/2005

The "be careful" when asked to be an expert witness is good advice."Never" is poor advice, I think.

I have employed expert witnesses to testify in three major cases (two were finally decided in the U.S. Supreme Court).

In all three cases we had to overcome a strong presumption in favor of the state -- a legislative determination of safety. We could not have done that without the help of true experts in their fields who testified honestly and completely.

I believe that none of the witnesses ever felt they were pressured to say anything other than the complete and accurate truth. I had them testify on direct about the problems on our side.

We did it that way because it was the only way we were confortable with and the only way we knew we could get the best people in the fields as witnesses. We also believed that the only way to gain the trust of a sceptical trial judge was to convince him that there was complete honesty on our side. Besides...in truth we lacked the skill to do it differently<g>

Had those witnesses been unwilling to testify, people would still be being killed for a wrong headed view of safety that was more, rather than less, hazardous to the public.

Have I seen lawyers twist experts in a smarmy (word of art) way? You bet. Have I seen expert witnesses that were smarmy. You bet.

Does that mean that the courts should be deprived of science and expertise? No -- that would almost surely mean that decisions, some of which have great social import, would not be accurately reached. So I would encourage experts to testify, but make it clear to the lawyer who seeks your testimony that you will honor the oath you take as a witness and that you do not regard your self as being "on their side". You will lose the smarmy lawyers at that point.

The Schiavo case is in the news. I am able to join a blogger in saying that I know almost nothing and despite that have no opinion. But I do hope that the courts have the guidance of truly expert and honest medical expert witnesses in their attempt to handle what seems a very difficult question.

David T. Courtwright -
3/21/2005

I got my call from one of the industry's lawyers sometime in the early 1990s. I explained that my area of expertise was narcotic drugs, not tobacco, and that I hadn't yet done much research on tobacco history. No problem, I was told: "We can help you develop your tobacco research." "How?" I said. "Well," he said, "we could provide money for you to hire research assistants, to help bring you up to speed in the field."

The plural of "assistants" was not lost on me, nor the advantages of a private research staff. But I said no. It wasn't until years later, when I began my own independent research on the tobacco industry, that I understood the larger pattern of buying influence. The tobacco companies had become so wealthy that they could, for a fraction of their profits, purchase the best public relations operations in the world, and lavish money on political campaigns, art exhibits, sporting events, lobbyists, expert witnesses, and, of course, lawyers. Nobody was immune. Philip Morris and RJR paid for 90 percent of the funding of the ACLU's workplace privacy task force, which had employees' smoking rights on its agenda.

I have also turned down requests from plantiffs' attorneys. I know from previous experience testifying on the constitutionality of federal drug laws that there is tremendous pressure to say only those things that will help "our guys." And that was in the context of pro bono work. When an expert is being paid, and paid well, the pressure to shade testimony is that much greater. My advice to historians considering serving as expert witnesses: be careful, because you may be walking into an ethical minefield.